1. This is a second appeal against the order passed by the First Class Subordinate Judge at Ahmednagar in proceedings arising out of Suit No. 67 of 1915. The suit was brought by the plaintiff for possession of the land with mesne profits. On July 10, 1917, he obtained a decree for possession, and a preliminary decree was passed under Order XX, Rule 12, of the Civil Procedure Code, directing an inquiry into the mesne profits. There were two appeals filed by defendants Nos. 1 and 2 which were dismissed. The plaintiff obtained possession of the land; and filed applications in 1919 and 1921 for ascertainment of mesne profits which were not prosecuted. The present application No. 7 of 1923 is made for ascertainment of mesne profits against the defendants and the surety who made himself liable for the decretal amount to the extent of Rs. 800. The Subordinate Judge held that the application for a final decree for mesne profits was barred by limitation. On appeal, the learned District Judge held that the application should be considered as one to enforce a judgment, decree or order of a Court and was beyond time under Article 181 of the Indian Limitation Act.
2. Under the Civil Procedure Code of 1882 the amount of mesne profits was to be determined in execution proceedings (vide Section 244, Clauses (a) and (b) of Act XIV of 1882). Under the present Code the amount has to be determined by the decree in the suit, and not in execution, and an inquiry as to mesne profits under Order XX, Rule 12, is not a proceeding in execution but a proceeding in continuation of the original suit. See Rudra Pratap Singh v. Sarda Mahesh Prasad Singh I.L.R. (1925) All. 543. There was a conflict of judicial opinion on the point under the old Code as to whether an application for ascertainment of mesne profits was an application in the suit or an application in execution of the decree. It was held by the Calcutta High Court in Puran Chand v. Roy Radha Kishen I.L.R. (1891) Cal. 132, f.b that an application to ascertain the amount of mesne profits was an application in the suit and not an application iii execution and neither Article 178 nor 179 of the Indian Limitation Act applied to such an application. This Court, however, differed from the Calcutta High Court and held that an application to have the future mesne profits ascertained was an application in execution. See Gangadhar v. Balkriahna Soiroba I.L.R. (1920) Bom. 819: 23 Bom. L.R. 263 and Yusuf Ali v. Papa Miya I.L.R. (1923) Bom. 778: 25 Bom. L.R. 810. The present Civil Procedure Code has set at rest the divergence of opinion between different High Courts by accepting the view that the ascertainment of mesne profits is a continuation of the suit and an application for ascertainment of mesne profits is not an application in execution. Under Order XX, Rule 12, Clause (1), where a suit is for the recovery of possession of immoveable property and for mesne profits, the Court may pass a decree (a) for possession of the property, (b) for past mesne profits or directing an inquiry as to such mesne protits, and (c) directing an inquiry as to future mesne profits from the institution of the suit. Clause (2) of the rule provides that where an inquiry is directed under Clause (b) or (c), a final decree in respect of the mesne profits shall be passed in accordance with the result of such inquiry.
3. Under Order XXVI, Rule 9, in any suit in which the Court deems a local investigation to bo requisite for the purpose of ascertaining the amount of mesne profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. The words 'or proceeding' in Section 392 of the old Civil Procedure Code have been omitted in Rule 9 of Order XXVI. On the result of such inquiry as is directed by the Court a final decree is to be passed for means profits under Clause (2) of Rule 12 of Order XX. Order XX, Rule 12, does not provide for any application to be made for the ascertainment of mesne profits. It provides that the Court after directing an inquiry shall pass a final decree in accordance with the result of such inquiry. No application is provided under this rule as is provided under Order XXXIV, Rule 5, s. Sub-clause (2), under which a final decree for sale of the mortgaged property cannot be made except on application made in that behalf by the plaintiff. In Bhatu Ram Modi v. Fogal Ram I.L.R. (1925) Pat. 223 it is held that where a decree for mesne profits has been passed and an application has been made for ascertainment of the mesne profits it is not competent to a Court at any stage to dismiss the application, it being beyond its power to dismiss a claim which has already been decreed, and that it is always open to the decree-holder to ask the Court to ascertain the mesne profits inasmuch as an application for mesne profits is an application in the wait itself, and the law of limitation has no application to it so long as the suit is a pending suit. The observations in Lachmi Narain Marwari v. Balmakund Marwari would apply. In that case a preliminary decree for partition was made and the Subordinate Judge dismissed the suit on the ground that the plaintiff did not appear on the date fixed for consideration of the question how the partition was to be effected. Their Lordships of the Privy Council observed that after a decree had once been made in a suit, the suit could not be dismissed unless and until the decree was reversed or varied or set aside, and that after a decree any party could apply to have it enforced.
4. If, therefore, the ascertainment of mesne profits is a proceeding in the suit, and it is the duty of the Court to pass a final decree in accordance with the result of the inquiry aS laid down by; Order XX, Rule 12, Clause (2), it was not then within the power of the lower Court in this case to decline to exercise the jurisdiction vested in it by law, and to dismiss the application for ascertainment of the mesne profits on the ground that it was beyond time under Article 181 of the Indian Limitation Act, There is nothing in the Code requiring the plaintiff who has the conduct of a pending suit to make formal applications from time to time requesting the Court to proceed to judgment am) decree. In this view it is not necessary to go into the question whether Article 181 applies to such an application, for the Code does not contemplate an application being made for the ascertainment of the mesne profits. We agree, however, with the view taken in Thana Zalaji Shet v. Dhana Jawherj ARC T in which it was held that Article 181 did not apply to an application for the ascertainment of mesne profits. The Indian Limitation Act does not apply to all applications. The preamble of the Indian Limitation Act shows that it is intended to apply to 'certain applications'. The applications covered by Articles 158 to 180 are applications specifically provided by the Code. Article 181 of the Indian Limitation Act would apply to applications specifically provided for by the Civil Procedure Code, See Bai Manekbai v. Mavekji Kavasji I.L.R. (1880) Bom. 213 and Gnanamuthu Upaderi v. Vana Koilpillai Nadan I.L.R. (1894) Mad. 379.
5. The respondents in this case have raised an objection that no second appeal lies in this case. The second appeal was filed by the plaintiff under the erroneous supposition that an application for ascertainment of mesne profits was an application in execution of the decree and a second appeal was permissible under Section 47 of the Civil Procedure Code. We are of opinion that an application for the ascertainment of the mesne profits is neither an application for execution of the decree, nor is it an application which is required by law to be made by the plaintiff as a condition precedent to the ascertainment of the mesne profits. In so far as the Court declined to ascertain the mesne profits and held that the plaintiff's claim was beyond time under Article 181 it was the formal exprassion of an adjudication conclusively determining the rights of the parties with regard to a matter in controversy in the suit within the meaning of Section 2, Clause (2), of the Civil Procedure Code. The decision of the lower Court operates as a decree and therefore a. second appeal lies to this Court.
6. We would, therefore, reverse the decrees of both the lower Courts and remand the case to the Subordinate Judge in order that he should order an inquiry into the mesne profits and then pass a final decree in accordance with the result of such inquiry under Clause (2) of Rule 12 of Order XX. The appellant should get his costs throughout from defendants Nos. 2 and 3.
7. I agree. Two points arise in the present appeal. The first is whether an application for the ascertainment of mesne profits is barred by limitation and the second whether an appeal will lie. So far as the firat point is concerned, it ia covered by authority in Bhatu Ram Modi v. Fogal Ram I.L.R. (1925) Pat. 223, and by the judgment of this Court in Thana Zalaji Shet v. Dhana Jawherji (1922) LPA. 1921, decided by Marten and Pratt JJ., on September 28, 1922, against the decision of Shah J., dismissing S.A. No. 444 of 1921, on August 7, 1921, which lays down that the Code does not provide for an application for ascertainment of the mesne profits under Order XX, Rule 12(1)(c), and the Court should hold that inquiry and should pass a final decree. There is no doubt, therefore, that the application is not governed by Article 181 of the Indian Limitation Act and the view of the lower Court is incorrect.
8. With regard to the point whether an appeal lies in the present case I am inclined to hold that the lower appellate Court having treated this application as an application under Section 47 of the Civil Procedure Code and having disposed of it as such, this appeal would lie, even if the view of the lower Court was incorrect. But apart from that the determination by the lower Court that the application for ascertainment of the mesne profits was barred by limitation would amount to a decree and a second appeal would, therefore, lie. See Bhup Indar Bahadur Singh v. Bijai Bahadur Singh I.L.R. (1900) All. 152: 2 Bom. L.R. 978 and Rudra Pratap Singh v. Sarda Mahesh Prasad Singh I.L.R. (1925) All. 543. I, therefore, agree that the order of the lower Court should be set aside and the case remanded for determination of the mesne profits.